Terms & Conditions

STRATX IT SOLUTIONS – TERMS AND CONDITIONS & BUSINESS ASSOCIATE AGREEMENT

Subject to the terms and conditions contained herein StratX IT Solutions LLC with its principal offices located at 10 New King Street, Suite 215, White Plains, NY 10604 (hereinafter “StratX”) hereby agrees to provide and its Customer hereby agrees to purchase certain information systems management and other professional consultation services outlined below (hereinafter the “Services”). All future Services will be made in accordance with the following Terms and Conditions:

TERMS AND CONDITIONS

I. TERM OF AGREEMENT.

Unless terminated as provided herein, the term of this STRATX Equipment and Software Service and Consulting Agreement shall be one (1) year from the Effective Date.

A. Effective Date: The effective date of this Agreement is documented on the original signed copy.

B. Automatic Renewal: This Software Service and Consulting Agreement shall automatically renew for consecutive one year terms upon the One Year Anniversary of the Effective Date (hereinafter the “Renewal Date”), unless either party gives written notice of termination thirty (30) days prior to the Renewal Date. Customer and STRATX may cancel the Maintenance Plan upon thirty (30) days written notice prior to Renewal Date. If there is no written notice of cancelation, Customer shall pay the Maintenance Plan Fee as invoiced. Customer hereby acknowledges that this is an information systems management and professional consulting service contract.

C. Early Termination by Customer. Customer acknowledges that the cost of this Service Agreement is based upon an Annual Contract Price as negotiated by STRATX and the Customer. Accordingly, there shall be no early Termination by the Customer without Cause. For purposes of this Agreement only, “Cause” shall mean that the Customer shall provide STRATX with prior written notice of an alleged breach of this Agreement, and STRATX has failed to remedy the problems within Thirty (30) business days of receipt of written notice. Early termination without Cause, or failure to pay as agreed, shall result in acceleration of the contract and payment of the full Contract price shall be due by check or upon execution of this agreement. Customer provides STRATX approval to process the accelerated payment by electronic means using Credit Card or ACH payment on file with STRATX within five (5) business days.

II. PAYMENT AND FEES.

A. Annual Service and Support Fee: The Annual Hardware Maintenance Fee for this Agreement is set forth on the STRATX Invoice, together with the payment terms. The Annual Hardware Maintenance Fee shall be paid as invoiced by STRATX.

Within five (5) business days of receiving an Invoice (the “Due Date”), Customer shall pay all Fees associated with this Agreement. Prices are exclusive of all excise, sales, use and other taxes imposed by any federal, state, municipal, or other governmental authority, all of which taxes shall be paid by the Customer. Any amount not received by the sixtieth (60th) day will be subject to a 1% interest per month.

The Annual Hardware Maintenance Fee is subject to change with the addition or removal of any Covered Equipment, services requested, and is subject to change annually upon renewal.

B. Additional Fees: In the event that Additional Fees (defined below) are charged under this Agreement, the Customer shall pay: (i) the cost of any parts not covered hereunder; (ii) the cost of any additional shipping, handling, travel and reasonable out-of-pocket expenses incurred by STRATX in connection with this Agreement or its performance; (Travel expenses will be charged as incurred and include tolls, parking, mileage at the then current labor rate, and other reasonable out-of-pocket expenses incidental to such travel); (iii) the cost of the labor at the existing STRATX labor rate; and, (iv) and, all taxes due upon the sales or services rendered by STRATX .

C. Supplemental Services: Supplemental Services (defined below) shall be performed on a time and material basis as estimated by STRATX , with a minimum of two (2) hours charged for all such Supplemental Services, and all labor charged at STRATX ’s applicable labor rate.

D Late Fees: If Customer fails to pay the invoice within ten days of the Due Date, Customer shall pay interest at the rate of one and one-half percent (1 ½%) per month until the invoice has been paid in full.

E. Attorneys Fees: In the event that STRATX shall commence any action to collect for any unpaid invoice, Customer shall pay reasonable attorney’s fees and costs to STRATX resulting from the collection or enforcement of this Agreement.

III. EQUIPMENT MAINTENANCE SERVICES.

During the Term of this Agreement, STRATX will provide “Preventative Maintenance” and “Remedial Maintenance” for the equipment set forth in the STRATX Invoice (hereinafter, “the Covered Equipment”), and any subsequent invoice numbers generated by STRATX for the renewal terms. It is hereby agreed that these Services are computer software consulting services, as follows:

A. Preventative Maintenance: From time to time, at its sole discretion, STRATX shall inspect the Covered Equipment. If, upon inspection, STRATX determines that the Covered Equipment requires repair or adjustment (including replacement of components or component parts), then STRATX, may, in its sole discretion, repair, replace, or exchange the component part or parts; provided however, that such repairs, adjustments or replacements must be caused by normal use of the Covered Equipment in accordance with instructions manuals applicable to the respective Manufacturer of the Covered Equipment.

B. Remedial Service: In the event that any of the Covered Equipment shall not function properly during normal business hours (8 A.M. to 5 P.M EST), Monday to Friday, Legal Holidays Excepted) Customer shall notify STRATX and request Remedial Service. Upon notification that Remedial Service has been requested, STRATX will use reasonable efforts to dispatch a service representative to the Customer’s facility within 24 hours of the Customer’s request for Remedial Service. Upon request, STRATX will diagnose the problem and use reasonable efforts to restore the Covered Equipment to its operating condition, including but not limited to, repair of Covered Equipment and reloading of applicable software used in connection with the Services provided by STRATX hereunder.

C. Pre-existing Conditions: Customer warrants that Covered Equipment is in good working order. STRATX is not responsible for providing Remedial Service for any pre-existing defects in the Covered Equipment. In the event that defects are identified during any Preventative Maintenance or Remedial Service, STRATX shall provide the Customer notice of the defect, and a written estimate for the cost of parts and labor to repair the defect. Upon notice of the defect, Customer may request STRATX to repair the defect for an Additional Fee. Upon completing the contemplated repair, Customer shall pay an Additional Fee incurred as a result of such Supplemental Services.

D. “Supplemental Services” Not Covered by this Agreement: In the event that the Customer requests that STRATX perform additional services not provided for under this Agreement (hereinafter “Supplemental Services”), STRATX shall provide a written estimate for such Supplemental Services, including any required parts or components. “Supplemental Services” are limited services that are needed by Customer by special request or on an emergency basis and that are not included within the scope of this Agreement. Customer shall pay additional Service Fees for Supplemental Services upon Customers written approval prior to providing such Services.

In the event that the Customer requests such Supplemental Services be performed by STRATX, Customer shall pay the Additional Fees incurred as a result of such Supplemental Services rendered by STRATX. For example, this Agreement covers Remedial Service during Normal Business Hours (8 A.M. to 5 P.M EST, Monday to Friday, Legal Holidays Excepted). In the event that the Customer requests that the Remedial Service be accomplished outside Normal Business Hours, then the Remedial Service will be subject to a Supplemental Service Fee as set forth above.

IV. SOFTWARE SUPPORT

Customer may also request from time to time that STRATX install certain Software on the Customer Hardware (hereinafter the “Licensed Products”).

A. Software Installed by STRATX .

1. In connection with the installation of any new or additional Hardware purchased from STRATX and billed by a separate STRATX Invoice, STRATX will also install certain additional Software set forth in those Invoices (hereinafter referred to “Additional Software”). STRATX will deliver the Customer the right to purchase a License from the manufacturer of each individually listed item of Additional Software. The Customer hereby agrees to abide by the terms and conditions of each of the License Agreements with each of the respective manufacturers.

2. STRATX will not provide software support for any applications unless it can be easily rectified by reinstalling the product on the client PC’s, otherwise software support will be provided to the Customer by the software manufacturer.

3. Customer covenants that: It has title to or license or rights to use or modify and has license or rights to permit StratX to use, access or modify any software that Customer has requested SSG use, access or modify as part of the Services. Customer shall indemnify SSG and shall hold SSG harmless against any loss, claim, damage or expense, including reasonable attorneys’ fees, resulting from any action brought or claim made by any third party claiming superior title or right to any such software or to any component of any such software.

V. GENERAL TERMS.

A. WARRANTY. STRATX is not the manufacturer or distributor of the Hardware or the Licensed Products, and, therefore, offers no warranty of merchantability, or fitness for a particular purpose. Customer acknowledges that it is the Customer’s responsibility to obtain and maintain all applicable Warranties from the respective manufacturers or distributors of the Hardware and Software. STRATX shall take reasonable steps to ensure that the Customer is delivered appropriate documentation permitting the Customer to obtain such Warranties.

1. Limited Warranty by STRATX. STRATX warrants that it has used its best efforts to select and install Software and Hardware in connection with this Agreement. STRATX warrants that the Licensed Products will be compatible with the hardware and software systems installed by STRATX, including the servers, network, workstations, and backup equipment.

2. ALL OTHER WARRANTIES DISCLAIMED. ASIDE FROM THIS WARRANTY, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, STRATX DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE FOR THEUSE OF THE LICENSED PRODUCT OR SERVICES OFFERED UNDER THIS AGREEMENT.

B. INDEMNIFICATION. The Customer shall indemnify STRATX and its members, directors, officers, employees, representatives and agents and defend and hold each of them harmless from and against all losses, damages, liabilities, claims, lawsuits, proceedings, costs and expenses, including without limitation, reasonable attorneys’ fees, in connection with any and all lawsuits, investigations, claims or demands, including liability to any third parties, (collectively, the “Losses”) arising or occurring as (a) a result of Customer’s Activities, (b) any act or omission of Customer relating to the Covered Equipment or its operation of any of its Designated Sites, (c) its use of any of the Licensed Products under this Agreement; or (d) any Losses claimed by any patients, clients, or invitees of the Customer.

C. PERFORMANCE OF SERVICES. It is acknowledged by the Customer that, in Furtherance of the Services provided hereunder, STRATX may require the use of the Covered Equipment or other hardware, software, or equipment owned by the Customer. The Customer hereby agrees to make such hardware, software or equipment available to STRATX, without charge, for the time and duration required to perform the services.

D. DUTIES OF CUSTOMER.

1. Operational. Customer has sole responsibility for the use of Covered Equipment and Licensed Products, including, without limitation, instituting and maintaining operating procedures, audit controls, accuracy and security of input and output data, restart and recovery routines, and other procedures necessary for the operation of the Covered Equipment. Customer agrees to educate and train all of the users of the Covered equipment in proper use and operation of the Covered Equipment in accordance with applicable manuals, standards, and instructions. Customer also represents that it will not permit unauthorized or untrained people to use the Covered Equipment. Customer warrants that it will take all steps to maintain, preserve and back-up all software and data necessary to repair, replace or restore the Customer to operation. STRATX is not responsible for loss or damage to such data.

2. Non-Solicitation. During the period of engagement under this Agreement and for a period of two (2) years following the date of termination or expiration thereof, Customer shall not directly or indirectly (i) recruit, solicit or induce, or attempt to induce, any employee or agent or contractor of STRATX (or its affiliates) to terminate their employment with, or otherwise cease their relationship with the Company or assist anyone else in doing so; or (ii) solicit, divert or take away, or attempt to divert or take away, the business or patronage of any of the clients, customers or accounts, or prospective clients, customers or accounts, of the Company which were contracted, solicited or served by the Company.

E. EXCLUSIONS. The Services provided under this Agreement shall not include the following:

(a) Maintenance of accessories, supplies, attachments, machines or other devices not specifically identified as Covered Equipment;
(b) Repair of damage or defects in the Covered Equipment caused by other than normal operating conditions or events, including, without limitation, damage resulting from accident, transportation, neglect or misuse, lightning, failure or fluctuation of electrical power, air conditioning or humidity control, telephone equipment or communication lines failure of interconnect equipment not owned, maintained or operated by STRATX ;
(c) Alterations in the Covered Equipment made by persons other than STRATX;
(d) Connection of the Covered Equipment by mechanical or electrical means to another machine or device not supplied by STRATX;
(e) Physical inaccessibility of the Equipment;
(f) Damages caused by software not loaded by STRATX, unless provided by or caused by STRATX;
(g) Communication wiring, interconnects, or equipment not installed or supplied by STRATX or listed in the STRATX Invoice # INVOICE;
(h) Damage caused by electronic Viruses or Spyware unless otherwise indicated in STRATX Invoice # INVOICE;
(i) Replacement of supplies or Customer replaceable parts such as, but not limited to, toner and ink cartridges, ink rollers, ribbon cartridges, printer rebuild kits, scanner consumables, paper, diskettes, tape cassettes.

F. LOSS OF EQUIPMENT. Customer is solely responsible for the loss, damage or destruction of the Covered Equipment after it has been delivered to Customer.

G. LIMITATION OF LIABILITY. In no event shall STRATX be liable for any damages arising out of or in connection with any delay in providing Preventative Maintenance or Remedial Service hereunder.

Customer agrees that STRATX’s total liability to Customer for any damages suffered in connection with, or arising out of, this Agreement or Customer’s use of any documentation, product, equipment or services provided (or to be provided) hereunder, regardless of whether any such liability is based upon contract, warranty, tort or other basis, shall be limited to an amount not to exceed the initial Annual Hardware Maintenance Fee paid under this Agreement. IN NO EVENT SHALL STRATX BE LIABLE TO CUSTOMER FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL OR INDIRECT DAMAGES (INCLUDING WITHOUT LIMITATION, DAMAGES ARISING FROM LOSS OF BUSINESS DATA, PROFITS OR GOODWILL OR USE OF PRODUCTS) INCURRED OR SUFFERED BY CUSTOMER IN CONNECTION WITH, OR ARISING OUT OF, THIS AGREEMENT OR CUSTOMER’S USE OF ANY DOCUMENTATION, EQUIPMENT OR SERVICES PROVIDED, OR TO BE PROVIDED, HEREUNDER, EVEN IF STRATX, HAS BEEN APPRISED OF THE LIKELIHOOD OF THE SAME. NO ACTION, REGARDLESS OF FORM, RELATED TO THE TRANSACTIONS OCCURRING UNDER, OR CONTEMPLATED BY THIS AGREEMENT MAY BE BROUGHT BY EITHER PARTY MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED.

H. TERMINATION BY STRATX. Unless otherwise agreed in writing, STRATX shall have the right, but not the obligation, to terminate this Agreement (a) immediately upon Customer’s breach of this Agreement or any Software License Agreement.

In the event that any Additional Software manufacturer, its successors or assigns, no longer updates, services or supports the Licensed Products but STRATX does not exercise its right, pursuant to this Paragraph to terminate this Agreement, then STRATX shall continue to use best efforts to provide maintenance to the Licensed Products as provided herein.

I. ARBITRATION. In the event of any dispute or controversy between the parties hereto arising out of or relating to this Agreement or any transaction contemplated hereby, such dispute or controversy shall be submitted to arbitration under the Commercial Rules of Arbitration of the American Arbitration Association in White Plains, New York for decision in any such matter in accordance with the then applicable rules, and shall be conducted in the English language. The determination of the arbitrator shall be final and shall not be subject to judicial review; provided, however, that any award or determination rendered by the arbitrators may be enforced in any court of competent jurisdiction.

J. FORCE MAJEURE. STRATX shall not be responsible for delay, non-delivery, or default in shipment or failure to deliver the Services, in whole or in part, if occasioned by strike, war, terror, riot, or revolution, or for any delay in transportation due to demands or embargoes of the United States Government, or any other government, acts of terrorism; or non-delivery or delays due to fire, storm, flood, drought, accident, insurrection, lockout, breakdown of machinery, commandeering of vessel carrying goods, or from loss or damage in transit, or detention or delay of vessel resulting directly or indirectly from acts of God, perils of the sea, stoppage of labor, shortage of cars, or by refusal of any necessary license or government restrictions, considered as “force majeure”, or by any other unavoidable cause.

K. SEVERABILITY. If any provision of this Agreement is found to be invalid, unenforceable, or illegal, the validity, legality, and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby.

L. AMENDMENTS. No supplement, modification, or amendment of any term, provision, or condition of this Agreement shall be binding or enforceable unless it is in writing and executed by the parties hereto.

M. EXCLUSIVE AGREEMENT. This Agreement constitutes the complete and exclusive statement of the agreement of the parties and supersedes any and all oral or written communications, and any prior agreements between the parties relating to the subject matter of this Agreement. This Agreement shall be governed by the laws of the State of New York.

N. NOTICE. All notices under this agreement shall be in writing and shall be sent by facsimile and certified mail, return receipt requested, addressed to the parties as hereinabove set forth and shall be deemed served on the date of mailing said notice with the postal authorities.

M. GOVERNING LAW. This Agreement shall be governed and construed in accordance with the laws of the State of New York.

Customer agrees that approval of this agreement also includes the approval of the below Business Associate Agreement, and replaces all terms and condition of any priori agreements in place at the time of purchase.

STRATX IT SOLUTIONS LLC BUSINESS ASSOCIATE AGREEMENT

This agreement (“Agreement”) is made and entered into today by and between you the Customer (“Covered Entity”) and StratX IT Solutions, LLC, (“StratX”), whose business address is 10 New King Street, White Plains, NY 10604.

WHEREAS, StratX is a professional computer and contract IT system provider who has contracted with the Covered Entity to install and maintain computer systems under separate software or hardware services agreements; and

WHEREAS, under Sections 261 through 264 of the federal Health Insurance Portability and Accountability Act of 1996, Public Law 104 191, (“HIPAA” as amended), direct the Department of Health and Human Services to develop standards to protect the security, confidentiality and integrity of health information; and

WHEREAS, the American Recovery and Reinvestment Act of 2009 (Pub. L. 111 5), pursuant to Title XIII of Division A and Title IV of Division B, called the “Health Information Technology for Economic and Clinical Health” (“HITECH”) Act, provides modifications to the HIPAA Security and Privacy Rule; and

WHEREAS, StratX and the Covered Entity hereby wish to enter into or have entered into an arrangement whereby StratX will provide certain computer system services to Covered Entity, with an agreement evidencing such arrangement as to any protected health information (“PHI”) that may be incidentally involved in the performance of the services provided by StratX,

NOW THEREFORE IT IS HEREIN AGREED, as follows:

1.0 Definitions.

1.1 Catch-all definition: The following terms used in this Agreement shall have the same meaning as those terms in the HIPAA Rules: Breach, Data Aggregation, Designated Record Set, Disclosure, Health Care Operations, Individual, Minimum Necessary, Notice of Privacy Practices, Protected Health Information, Required by Law, Secretary, Security Incident, Subcontractor, Unsecured Protected Health Information, and Use.

1.2 Specific definitions:
(a) Business Associate. “Business Associate” shall generally have the same meaning as the term “business associate” at 45 CFR 160.103, and in reference to the party to this agreement, shall mean StratX.

(b) Covered Entity. “Covered Entity” shall generally have the same meaning as the term “Covered Entity” at 45 CFR 160.103, and in reference to the party to this agreement, shall mean the Covered Entity set forth above.
(c) HIPAA Rules. “HIPAA Rules” shall mean the Privacy, Security, Breach Notification, and Enforcement Rules at 45 CFR Part 160 and Part 164.

2.0 Obligations and Activities of STRATX.

2.1 StratX agrees to use commercially reasonable efforts to:
(a) Not use or disclose PHI other than as permitted or required by the Agreement or as required by law;
(b) Use appropriate safeguards, and comply with Subpart C of 45 CFR Part 164 with respect to electronic PHI, to prevent use or disclosure of PHI other than as provided for by the Agreement;
(c) Implement administrative, physical and technical safeguards to protect the confidentiality, integrity and availability of the individual PHI, as required by law;
(d) Report to Covered Entity any use or disclosure of PHI not provided for by the Agreement of which it becomes aware, including breaches of unsecured PHI as required at 45 CFR 164.410, and any security incident of which it becomes aware;
(e) In accordance with 45 CFR 164.502(e)(1)(ii) and 164.308(b)(2), if applicable, ensure that any subcontractors that create, receive, maintain, or transmit PHI on behalf of StratX agree to the same restrictions, conditions, and requirements that apply to StratX with respect to such information;
(f) Make available PHI in a designated record set to the Covered Entity as necessary to satisfy Covered Entity’s obligations under 45 CFR 164.524;
(g) Make any amendment(s) to PHI in a designated record set as directed or agreed to by the Covered Entity pursuant to 45 CFR 164.526, or take other measures as necessary to satisfy Covered Entity’s obligations under 45 CFR 164.526;
(h) Maintain and make available the information required to provide an accounting of disclosures to the Covered Entity as necessary to satisfy Covered Entity’s obligations under 45 CFR 164.528;
(i) To the extent StratX is to carry out one or more of Covered Entity’s obligation(s) under Subpart E of 45 CFR Part 164, comply with the requirements of Subpart E that apply to the Covered Entity in the performance of such obligation(s); and
(j) Make its internal practices, books, and records available to the Secretary for purposes of determining compliance with the HIPAA Rules.

2.2 Permitted Uses and Disclosures by StratX. Except as otherwise limited by this Agreement, StratX shall be permitted to use and disclosure such PHI or other data as may, from time to time be necessary to perform the contracted for computer and electronic data services provided by StratX in the normal course of its responsibilities, including for the proper management and administration of StratX, respond to legal process or subpoena as required by law; or to provide Data Aggregation services to Covered Entity, as permitted by 45 C.F.R. 164.504(e)(2)(i)(B); to make uses and disclosures and requests for PHI consistent with Covered Entity’s minimum necessary policies and procedures; provided however that StratX may not use or disclose PHI in a manner that would violate Subpart E of 45 CFR Part 164 if done by Covered Entity.

3.0 Term and Termination.

3.1 Term. The Term of this Agreement shall be effective as of the Effective Date of this Agreement, and shall terminate on the date Covered Entity terminates for cause as authorized in paragraph (b) of this Section, whichever is sooner.

3.2 Termination for Cause. StratX authorizes termination of this Agreement by Covered Entity, if Covered Entity determines StratX has violated a material term of the Agreement, and StratX has not cured the breach or ended the violation within the time specified by Covered Entity.

3.3. Obligations of StratX Upon Termination. Upon termination of this Agreement for any reason, STRATX shall return to Covered Entity or, if agreed to by Covered Entity, destroy all protected health information received from Covered Entity, or created, maintained, or received by STRATX on behalf of Covered Entity, that STRATX still maintains in any form. STRATX shall retain no copies of the protected health information. Upon termination of this Agreement for any reason, StratX, with respect to protected health information received from Covered Entity, or created, maintained, or received by StratX on behalf of Covered Entity, shall:

(a) Retain only that protected health information which is necessary for StratX to continue its proper management and administration or to carry out its legal responsibilities; (b) Return to Covered Entity or, if agreed to by Covered Entity, destroy the remaining protected health information that StratX still maintains in any form; (c) Continue to use appropriate safeguards and comply with Subpart C of 45 CFR Part 164 with respect to electronic protected health information to prevent use or disclosure of the protected health information, other than as provided for in this Section, for as long as STRATX retains the protected health information; (d) Not use or disclose the PHI retained by STRATX other than for the purposes for which such protected health information was retained and subject to the same conditions set out above, which applied prior to termination; and (e) Return to Covered Entity or, if agreed to by Covered Entity, destroy the protected health information retained by STRATX when it is no longer needed by STRATX for its proper management and administration or to carry out its legal responsibilities.

3.4 Survival. The obligations of StratX under this Section shall survive the termination of this Agreement.

4.0 Indemnification. Covered Entity will indemnify, hold harmless and defend STRATX from and against any and all claims, losses, liabilities, costs and other expenses incurred as a result of, or arising directly or indirectly out of or in connection with: (i) any misrepresentation, breach of warranty or non-fulfillment of any undertaking on the part of the Covered Entity; and (ii) any claims, demands, awards, judgments, actions and proceedings made by any person or organization arising out of or in any way connected with the Covered Entity’s liability for unauthorized disclosure of PHI.

5.0 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one original Agreement. Facsimile signatures shall be accepted and enforceable in lieu of original signatures.